第27章

I may acquire the property of another merely by long possession and use of it (usucapio).Such property is not acquired, because I may legitimately presume that his consent is given to this effect (per consensum praesumptum); nor because I can assume that, as he does not oppose my acquisition of it, he has relinquished or abandoned it as his (rem derelictam).But I acquire it thus because, even if there were any one actually raising a claim to this property as its true owner, I may exclude him on the ground of my long possession of it, ignore his previous existence, and proceed as if he existed during the time of my possession as a mere abstraction, although I may have been subsequently apprized of his reality as well as of his claim.

This mode of acquisition is not quite correctly designated acquisition by prescription (per praescriptionem); for the exclusion of all other claimants is to be regarded as only the consequence of the usucapion; and the process of acquisition must have gone before the right of exclusion.The rational possibility of such a mode of acquisition has now to be proved.

Any one who does not exercise a continuous possessory activity (actus possessorius) in relation to a thing as his is regarded with good right as one who does not at all exist as its possessor.For he cannot complain of lesion so long as he does not qualify himself with a title as its possessor.And even if he should afterwards lay claim to the thing when another has already taken possession of it, he only says he was once on a time owner of it, but not that he is so still, or that his possession has continued without interruption as a juridical fact.It can, therefore, only be a juridical process of possession, that has been maintained without interruption and is proveable by documentary fact, that any one can secure for himself what is his own after ceasing for a long time to make use of it.

For, suppose that the neglect to exercise this possessory activity had not the effect of enabling another to found upon his hitherto lawful, undisputed and bona fide possession, and irrefragable right to continue in its possession so that he may regard the thing that is thus in his possession as acquired by him.Then no acquisition would ever become peremptory and secured, but all acquisition would only be provisory and temporary.This is evident on the ground that there are no historical records available to carry the investigation of a title back to the first possessor and his act of acquisition.The presumption upon which acquisition by usucapion is founded is, therefore, not merely its conformity to right as allowed and just, but also the presumption of its being right (praesumtio juris et de jure), and its being assumed to be in accordance with compulsory laws (suppositio legalis).Anyone who has neglected to embody his possessory act in a documentary title has lost his claim to the right of being possessor for the time; and the length of the period of his neglecting to do so- which need not necessarily be particularly defined- can be referred to only as establishing the certainty of this neglect.And it would contradict the postulate of the juridically practical reason to maintain that one hitherto unknown as a possessor, and whose possessory activity has at least been interrupted, whether by or without fault of his own, could always at any time re-acquire a property; for this would be to make all ownership uncertain (dominia rerum incerta facere).

But if he is a member of the commonwealth or civil union, the state may maintain his possession for him vicariously, although it may be interrupted as private possession; and in that case the actual possessor will not be able to prove a title of acquisition even from a first occupation, nor to found upon a title of usucapion.But, in the state of nature, usucapion is universally a rightful ground of holding, not properly as a juridical mode of requiring a thing, but as a ground for maintaining oneself in possession of it where there are no juridical acts.A release from juridical claims is commonly also called acquisition.The prescriptive title of the older possessor, therefore, belongs to the sphere of natural right (est juris naturae).

34.II.Acquisition by Inheritance.

(Acquisitio haereditatis).

Inheritance is constituted by the transfer (translatio) of the property or goods of one who is dying to a survivor, through the consent of the will of both.The acquisition of the heir who takes the estate (haeredis instituti) and the relinquishment of the testator who leaves it, being the acts that constitute the exchange of the mine and thine, take place in the same moment of time- in articulo mortis-and just when the testator ceases to be.There is therefore no special act of transfer (translatio) in the empirical sense; for that would involve two successive acts, by which the one would first divest himself of his possession, and the other would thereupon enter into it.Inheritance as constituted by a simultaneous double act is, therefore, an ideal mode of acquisition.Inheritance is inconceivable in the state of nature without a testamentary disposition (dispositio ultimae voluntatis); and the question arises as to whether this mode of acquisition is to be regarded as a contract of succession, or a unilateral act instituting an heir by a will (testamentum).The determination of this question depends on the further question, whether and how, in the very same moment in which one individual ceases to be, there can be a transition of his property to another person.Hence the problem, as to how a mode of acquisition by inheritance is possible, must be investigated independently of the various possible forms in which it is practically carried out, and which can have place only in a commonwealth.